Shao v. Holder , 458 F. App'x 67 ( 2012 )


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  •      10-3674-ag
    Shao v. Holder
    BIA
    Nelson, IJ
    A099 592 237
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
    ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
    PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
    DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
    ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 6th day of February, two thousand twelve.
    PRESENT:
    PETER W. HALL,
    DEBRA ANN LIVINGSTON,
    DENNY CHIN,
    Circuit Judges.
    ______________________________________
    JIAN GUANG SHAO,
    Petitioner,
    v.                                   10-3674-ag
    NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
    Respondent.
    ______________________________________
    FOR PETITIONER:                 Jan Potemkin, New York, New York
    FOR RESPONDENT:        Tony West, Assistant Attorney
    General; Anthony C. Payne, Senior
    Litigation Counsel; Ali Manuchehry,
    Trial Attorney, Office of Immigration
    Litigation, United States Department
    of Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a
    Board of Immigration Appeals (“BIA”) decision, it is hereby
    ORDERED, ADJUDGED, AND DECREED, that the petition for review
    is DISMISSED in part, and DENIED in part.
    Jian Guang Shao, a native and citizen of China, seeks
    review of a December 28, 2009, order of the BIA affirming
    the March 4, 2008, decision of Immigration Judge (“IJ”)
    Barbara A. Nelson, which denied Shao’s application for
    asylum, withholding of removal, and relief under the
    Convention Against Torture (“CAT”). In re Jian Guang Shao,
    No. A099 592 237 (B.I.A. Dec. 28, 2009), aff’g No. A099 592
    237 (Immig. Ct. N.Y. City Mar. 4, 2008). We assume the
    parties’ familiarity with the underlying facts and
    procedural history in this case.
    Under the circumstances of this case, we have reviewed
    both the IJ’s and the BIA’s opinions “for the sake of
    completeness.” Zaman v. Mukasey, 
    514 F.3d 233
    , 237 (2d Cir.
    2008) (per curiam). The applicable standards of review are
    well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
    v. Holder, 
    562 F.3d 510
    , 513 (2d Cir. 2009).
    Shao argues that the agency erred in concluding that he
    failed to demonstrate that he timely filed his asylum
    application, pointing out that the BIA did not explain why
    an airline ticket showing that he traveled inside China in
    March 2005 was insufficient to prove that his January 2006
    asylum application was filed within one year of his arrival
    in the United States. This argument does not raise a
    question of law but rather takes issue with the agency’s
    evaluation of Shao’s evidence. See Gui Yin Liu v. INS, 
    508 F.3d 716
    , 720 (2d Cir. 2007) (per curiam). We lack
    jurisdiction to address this argument regarding the agency’s
    pretermission of his asylum claim. We thus dismiss this
    portion of the petition. See 8 U.S.C. §§ 1158(a)(2)(B),
    1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of 
    Justice, 471 F.3d at 315
    , 329 (2d Cir. 2006). We note that even if the
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    agency’s pretermission of asylum was in error, remand would
    not be appropriate because the agency’s alternative
    disposition of Shao’s petition, as discussed below, is
    supported by substantial evidence. See Xiao Ji 
    Chen, 471 F.3d at 339
    .
    Shao does not challenge the agency’s determination that
    he did not suffer past persecution or its conclusion that he
    was not entitled to a presumption that he has a well-founded
    fear of future persecution. See Baba v. Holder, 
    569 F.3d 79
    , 86 (2d Cir. 2009) (noting that “a showing of past
    persecution shifts the burden to the government on the
    question of the petitioner’s well-founded fear of future
    persecution”). Instead, Shao contends that he demonstrated
    a well-founded fear of persecution on account of his
    resistance to the family planning policy, arguing that the
    authorities might believe that he “assisted his wife in
    having the [intrauterine device she was mandated to use
    under the family planning policy] removed,” or that his
    “efforts to hide his wife” during her pregnancy constituted
    resistance. Even if these acts were considered “other
    resistance” to the family planning policy, thereby providing
    a nexus to a protected ground, see Shi Liang Lin v. U.S.
    Dep’t of 
    Justice, 494 F.3d at 309-10
    (2d Cir. 2007), having
    found that Shao did not demonstrate past persecution, the
    agency reasonably determined that he did not meet his burden
    to establish a well-founded fear of persecution, because
    there is no evidence to indicate that he was sought by the
    Chinese authorities. See Jian Xing Huang v. INS, 
    421 F.3d 125
    , 128-29 (2d Cir. 2005).
    Finally, the agency did not err in denying Shao
    withholding of removal and CAT relief, to the extent these
    claims were predicated on the same facts as his asylum
    claim.* See Lin Zhong v. U.S. Dep’t of Justice, 
    480 F.3d 104
    , 115 (2d Cir. 2007) (recognizing that withholding of
    removal and CAT relief require “a greater quantum of proof”
    than asylum).
    For the foregoing reasons, the petition for review is
    DISMISSED in part and DENIED in part. As we have completed
    *
    As the Government points out, Shao does not raise any
    argument before us regarding his illegal departure claim.
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    our review, any stay of removal that the Court previously
    granted in this petition is VACATED, and any pending motion
    for a stay of removal in this petition is DENIED as moot.
    Any pending request for oral argument in this petition is
    DENIED in accordance with Federal Rule of Appellate
    Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    4